Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill - Human Rights Joint Committee Contents


4  Powers to stop, question, search and detain at ports (Part 10)

Background

90.  Part 10 of the Bill contains the provisions[74] which amend the port and border security powers in Schedule 7 to the Terrorism Act 2000. Schedule 7 includes very wide powers to stop, question, search and detain people (including UK nationals) at ports and airports in order to ascertain whether they are a terrorist, which for this purpose means "a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism".[75]

91.  There is no requirement that the officer have reasonable grounds for suspicion that the person is involved in terrorism before the powers can be exercised. The person being questioned is required to answer questions and provide information and documents on pain of criminal penalty. They can be detained for questioning for up to 9 hours. The person can be searched, as can any property they have on them (including personal electronic devices such as laptop computers, tablets and mobile phones). Property can be seized and retained for examination. Failure to comply with any duties or requests is a criminal offence, punishable by imprisonment for up to 3 months. The powers are used on a considerable scale (approximately 80,000 stops a year) and, according to the EHRC, the ethnic breakdown of those subjected to the power suggests a statistical disproportionality in terms of race and, probably, religion.

92.  The Independent Reviewer of Terrorism Legislation, David Anderson QC, in his Reports on the Operation of the Terrorism Acts in 2010 and 2011, raised a number of concerns about the operation of the powers in Schedule 7 and called for a thorough review and public consultation. In September 2012 the Home Office announced a consultation on proposals to reform Schedule 7.[76] On 16 October 2012 the Independent Reviewer, in oral evidence, encouraged us to carry out more detailed scrutiny of the Schedule 7 power and of the Government's proposals for its reform. He had no doubt that the power is a very useful one but he identified a number of controversial features about its scope. He described the Home Office's proposals for trimming the scope of the power as "limited".

93.  In his 2013 Report on the Operation of the Terrorism Acts in 2012, published in July this year, the Independent Reviewer welcomed the changes to Schedule 7 proposed in the Bill, and accepted that there were justifications for having a no-suspicion power to stop and examine at ports.[77] However, he regretted that the Government's public consultation had not extended to some fundamental issues that he had recommended should be considered: in particular, to include the possibility that further elements of the Schedule 7 power might be made dependent on reasonable suspicion,[78] and to cover the safeguards governing the practice of copying and retaining data from laptops and mobile phones.[79]

94.  On 11 July the Government published its response to the public consultation, including its summary of consultation responses.[80]

95.  On 18 August, the Schedule 7 powers were used by the Metropolitan Police to detain and question David Miranda, the Brazilian partner of Guardian journalist Glenn Greenwald (the author of the Guardian newspaper stories based on classified intelligence material leaked by Edward Snowden), as he was in transit at Heathrow airport on his way from Berlin to Rio de Janeiro. Mr. Miranda was detained and questioned for 9 hours and his electronic devices were seized and detained by the police pursuant to the powers in Schedule 7. The devices are understood to contain material provided by Snowden to the Guardian, including, the Government says, some 58,000 classified UK intelligence documents, which Mr Miranda was in possession of as a "courier" between Mr Greenwald and Laura Poitras, a documentary film-maker in Berlin. Judicial review proceedings have been brought by Mr Miranda against the Home Secretary and the Metropolitan Police challenging the legality of the use of the Schedule 7 powers against Mr Miranda and in relation to material which is said to enjoy journalistic privilege, and seeking to restrain the use made by the Government and the police of the seized material. The hearing is likely to take place in October. The Independent Reviewer of Terrorism Legislation is conducting an investigation into the use of the Schedule 7 powers in the Miranda case. His Report is unlikely to be published before the legal proceedings have concluded and is therefore unlikely to be available to inform debate on the Bill during its passage.

96.  The reforms to Schedule 7 were hardly debated in Public Bill Committee: the only substantive consideration was of the Government's amendment to the Bill to provide an express statutory basis for the copying and retention of property seized in a Schedule 7 examination.[81]

The consultation process and pre-legislative scrutiny

97.  The Government's consultation on reform of the Schedule 7 powers closed in December 2012. In January 2013 we wrote to the Home Secretary making clear our interest in scrutinising the proposed reforms and asking the Government to place in the public domain the responses to its consultation, and not merely the Government's summary of them. This was in keeping with our recommendation in our Report on the Justice and Security Green Paper, that in future similar consultations should make clear that responses will be made public, in order to assist debate and scrutiny, unless a request to the contrary was made.

98.  In March the Home Secretary refused our request for publication of the responses to the Government's consultation because responses received from police forces and individual police officers contain operationally sensitive details that cannot be published for security reasons. The Government's response to the public consultation, including its summary of the responses it received, was finally published in July, two months after publication of the Bill containing the amendments which were the product of the Government's consultation.

99.  In his most recent Report on the operation of the Terrorism Acts, the Independent Reviewer of Terrorism Legislation was critical of the Government's refusal of our request, describing it as, in his view, regrettable: "An informed and productive public debate is best ensured if each participant in that debate knows what the others have been saying."[82]

100.  We are disappointed by the Government's refusal to publish the responses to its consultation in full, in light of our recommendation in our Report on the Justice and Security Green Paper that in future such consultations should make clear that responses will be published unless confidentiality is expressly sought.

101.  We also regret the lack of opportunity for pre-legislative scrutiny of the changes to Schedule 7 powers. The Independent Reviewer has expressed concern about the operation of these powers in three consecutive reports, and in our view the publication of draft clauses would have provided more opportunity for thorough parliamentary scrutiny of the Government's proposals.

Human rights enhancing changes to the Schedule 7 powers

102.  In its ECHR memorandum, the Government states that it considers Schedule 7 powers to be fully compliant with the ECHR as it stands, but it wishes to strengthen their compliance by a number of reforms which are designed to reduce the level of interference possible under Schedule 7 powers, to more tightly prescribe their use, and to increase the level of safeguards relating to their use. To this end the provision in Schedule 7 to the Bill would make a number of welcome changes to the powers in Schedule 7 Terrorism Act 2000, including:

  • providing that the powers can only be exercised by designated immigration officers who must undergo training which will be set out in a revised Code of Practice;[83]
  • reducing the maximum amount of time for which a person may be detained under the power from nine hours to six hours;
  • requiring that after one hour of questioning the person must be formally detained, which triggers the applicability of certain legal entitlements and safeguards;
  • introducing new rights for a person detained at a port under Schedule 7 to have a person informed of his detention and to consult a solicitor;
  • prohibiting intimate searches and removing the power to take an intimate sample, and requiring reasonable suspicion before a strip search may be conducted;
  • requiring the Secretary of State to issue a Code of Practice which will include provision about the training to be undertaken by examining officers; and.
  • providing a new duty to keep detention under Schedule 7 under periodic review at such intervals as may be specified in the Code of Practice.

103.  We welcome these improvements to the powers in Schedule 7. Although some will make no practical difference (for example, there are no known examples of intimate searches ever having been conducted under Schedule 7, or intimate samples taken, and the current Code of Practice already requires reasonable suspicion before a strip search is conducted), nevertheless, as the Government's ECHR memorandum rightly claims, the amendments narrow the very wide scope of the powers and so reduce the potential for the powers to be found incompatible with Convention rights.

104.  In our view, however, a number of significant human rights compatibility concerns remain about the Schedule 7 powers, even after these changes have been made.

The scope of the powers: lack of reasonable suspicion requirement

105.  In its response to our questions, the Government accepts that the powers in Schedule 7 are "unusually wide-ranging" and that, even after the changes made by the Bill, there are no other powers to stop, question, search and detain UK citizens without reasonable suspicion which are wider in scope than, or comparable to, these powers. However, the Government says that Schedule 7 is "a key part of the UK's border security arrangements", and although it accepts that the powers are unusually wide it considers that such wide powers are both necessary and proportionate "given the current terrorist threat, in relation to which numerous terrorist plots have involved individuals undertaking, or planning to undertake, international travel to plan and prepare for acts of terrorism." The Government says that people are aware that they might be subjected to questioning and searches when they go through ports and airports.

106.  The Government says that introducing a reasonable suspicion test for Schedule 7 would expose the public to an increased risk of terrorism because it would reduce the capability of the police to detect and deter individuals travelling to and from the UK to plan, train or raise funds to carry out or otherwise engage in terrorism. The Government is opposed to introducing a reasonable suspicion test at the point when a person is formally detained after one hour of questioning because, it says, an examination is sometimes prolonged beyond one hour, not because of any reasonable suspicion, but because of matters such as language or interpretation issues, evasive responses about the purpose of travel, inconsistencies in the information provided, or the need to examine property.

107.  The EHRC, which has undertaken extensive work on stop and search powers under other statutory provisions,[84] argues that Schedule 7 is inherently incompatible with Articles 5 and 8 ECHR because without a requirement of prior reasonable suspicion it is incompatible with the Convention requirements that interferences with those rights be "prescribed by law" (Article 5) and "in accordance with the law" (Article 8).

108.  A challenge to the Convention compatibility of Schedule 7 on this basis is pending in Strasbourg. On 28 May 2013 the European Court of Human Rights declared admissible a complaint by a British citizen, Mr. Malik, that the use of Schedule 7 powers against him at Heathrow airport on his return to the UK from Saudi Arabia violated his right to liberty under Article 5 ECHR and his right to respect for private life under Article 8 ECHR.[85] The applicant's argument is that Schedule 7 is incompatible on its face with Articles 5 and 8 ECHR, because the absence of a reasonable suspicion requirement in the legal framework leaves too much discretion to the executive: the quality of the law which allows for his examination and detention without suspicion, it is argued, is insufficiently specific and concrete and therefore open to arbitrary and discriminatory use. The Court will now go on to consider the merits of Mr. Malik's complaints that, without a reasonable suspicion requirement, Schedule 7 is inherently incompatible with Articles 5 and 8 ECHR. On 28 August, however, in the case of Bheghal, the High Court considered and rejected a similar legal challenge to the compatibility of Schedule 7 with Articles 5, 6 and 8 ECHR.

109.  In our view, a statutory power to stop, question and search travellers at ports and airports, without reasonable suspicion, is not inherently incompatible with the right to liberty in Article 5 ECHR or the right to respect for private life in Article 8 ECHR. As we said in our Reports on the reform of the stop and search power in s. 44 Terrorism Act 2000, following the decision of the European Court of Human Rights in Gillan v UK, a without suspicion stop and search power is in principle capable of being compatible with Articles 5 and 8 ECHR. Whether it is so compatible, however, depends on whether there has been shown to be a very clear need for such a power, and whether the power is sufficiently narrowly defined and subject to sufficiently robust safeguards to ensure that it is confined to the exceptional circumstances in which it is shown to be needed. It follows that the wider the scope of the powers available, and the fewer the legal safeguards, the greater the risk of incompatibility with the right to liberty and the right to respect for private life.

110.  In our view, the Government has clearly made out a case for a without suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel in the overall threat picture, and the evidence seen by the Independent Reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security.[86] The retention of a without suspicion power in Schedule 7 of the Terrorism Act 2000 is therefore not inherently incompatible with Articles 5 and 8 ECHR.

111.  The question we have gone on to consider, however, is whether the powers which will continue to be available under the amended Schedule 7 are still too widely defined and subject to too few legal safeguards to satisfy the Convention requirement spelt out in the Gillan case, that they must be sufficiently tightly circumscribed and subject to adequate legal safeguards. We note that the Bill does introduce a requirement for reasonable suspicion, but only in relation to one of the Schedule 7 powers: strip searches. The examining officer will be required to have "reasonable grounds to suspect" that the person is concealing something which may evidence that they are a terrorist before a strip search can be carried out.[87] However, this is just one of a number of highly intrusive powers which will continue to be available under the broadly worded powers in the reformed Schedule 7. In addition to the power to stop, question and search the luggage of travellers, examining officers will still have the power, without reasonable suspicion, to:

  • detain for up to 6 hours;
  • access, search, seize, copy and retain all the information on personal electronic devices such as mobile phones, laptops and tablets;
  • take and retain DNA samples and fingerprints without consent.

112.  We have considered carefully whether the Government has demonstrated the necessity for these more intrusive powers being exercisable without reasonable suspicion, and we are not persuaded that they have. In our view, the legal framework should distinguish between powers which can be exercised without reasonable suspicion, such as the power to stop, question, request documentation, and physically search persons and property, and more intrusive powers such as detention, strip searching, searching the contents of personal electronic devices, the taking of biometric samples, seizure and retention of property, including personal information on personal electronic devices. In our view, the latter set of more intrusive powers should be exercisable only if the examining officer reasonably suspects that the person is or has been involved in terrorism.

113.  We therefore recommend that the Bill be amended to introduce a reasonable suspicion requirement before the more intrusive powers under Schedule 7 are exercisable. We recommend that the reasonable suspicion threshold be introduced at the point at which the person being examined is formally detained, which the Bill requires to happen after an hour of questioning. The following amendment would give effect to this recommendation in relation to detention and the taking of fingerprints and non-intimate samples without consent:

Schedule 7 paragraph 2, page 147, line 25, after new paragraph 6A(2) insert:

"(2A) A person questioned under paragraph 2 or 3 may not be detained under paragraph 6 unless the examining officer has reasonable grounds to suspect that he is a person falling within section 40(1)(b)."

114.  This amendment would introduce a requirement of reasonable suspicion before a person being questioned under Schedule 7 powers can be detained. The power to take fingerprints and non-intimate samples without consent (under para 10 of Schedule 8 to the Terrorism Act 2000) would also be limited as a consequence of this amendment. Separate amendments are required to limit the power to access, search, examine, copy and retain data on personal electronic devices.

Accessing, searching, examining, copying and retention of data on personal electronic devices

115.  The Independent Reviewer in his 2011 Report on the operation of the Terrorism Act 2000 identified as one of the important issues concerning the operation in practice of Schedule 7 whether search powers should extend to mobile phone records. The issue was not included, however, in the Government's consultation about the operation of Schedule 7. In his recent 2013 Report on the operation of the Terrorism Act, the Independent Reviewer said "it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable, and that there should be sufficient safeguards and sufficient guidance to ensure that it is practised only when this is necessary in a democratic society."

116.  We asked the Government whether copying the contents of a person's mobile phone SIM card during a Schedule 7 search is compatible with the right to respect for private life in Article 8 ECHR, and what provision in Schedule 7 is relied upon as the lawful authority for such copying of personal information.

117.  In response, the Government accepted that copying information from a person's mobile phone SIM card is "capable of constituting an interference with a person's right to respect for their private life." The lawful authority for copying the content of electronic devices such as mobile phones is said to be contained in the existing paragraphs 5(a) and (d) of Schedule 7, which require a person under examination to give the examining officer any information or document in his possession which the examining officer requests, and paragraph 8, under which the examining officer may conduct a search of the person under examination, and a search of anything the person has with him that is on, has been or is likely to be on a ship, aircraft or train. The Government also appears to rely on paragraph 11 of Schedule 7, which already expressly provides for the detention of property obtained in a Schedule 7 examination, and it says that new paragraph 11A of Schedule 7, inserted by Government amendment of the Bill in Committee, ensures that any interference with Convention rights is "more clearly in accordance with law that is adequately accessible and foreseeable", by expressly providing for the copying and retention of information from examined property.

118.  The justification for any interference with the right to respect for private life is said to be "the need to protect the public from terrorism". Information is now largely stored electronically on mobile devices, rather than on paper as it was until recently, and without the power to examine the contents of such devices, the Government says, "the police would be severely curtailed in their ability to determine whether or not a person appears to be or has been involved in terrorism." The power is only exercised, the Government says, when it is "necessary and proportionate to do so." Moreover, information obtained in this way is subject to the safeguards contained in the Data Protection Act and the statutory Code of Practice on the Management of Police Information.

119.  The powers in the amended Schedule 7 to access, search, seize, copy and retain copies of anything the person has with them, including personal information held on personal electronic devices such as mobile phones, tablets and personal computers, remain extremely wide and are accompanied by few legal safeguards. A personal electronic device such as a mobile phone or a laptop contains a significant amount of personal information, including, often, an individual's filing cabinet, their entire address book as well as their electronic conversations with family and friends. This is why most personal electronic devices are password-protected.

120.  Yet there is no reasonable suspicion requirement attached to the powers to access and search such material, and they are without limitation in terms of the type of material concerned (there is no exception, for example, for any categories of material which enjoy legal protection in other contexts, such as legally professionally privileged material, journalistic material which would disclose a journalist's sources, or material subject to parliamentary privilege). Nor are there any legal safeguards such as a requirement of judicial or other independent authorisation before any of the more intrusive powers (such as searching and reading a person's personal e-mail correspondence on their electronic device) are exercised. The safeguards in the Data Protection Act, relied on by the Government, do not apply in relation to personal data being processed for the purposes of safeguarding national security, due to the wide exemption in s. 28 of that Act. There are no specific safeguards in the Management of Police Information Guidance which relate to the retention, review and disposal of personal data obtained pursuant to the Schedule 7 powers, and the adequacy of that Guidance for the purposes of providing the level of legal certainty required by Article 8 has recently been doubted in two judicial decisions, including one by the European Court of Human Rights.[88]

121.  The working draft of the revised Code of Practice states that the decision on whether or not to use the power to examine and detain mobile phones and/or other electronic devices is "at the discretion of the examining officer. However, this power should not be used routinely but only when the examining officer consider it to be necessary and proportionate.[89]

122.  We consider that the current powers to access, search, examine, copy and retain data held on personal electronic devices, such as mobile phones, laptops and tablets, are so wide as not to be "in accordance with the law". We welcome the express references to necessity and proportionality in the working draft of the revised Code of Practice, but since examining officers are already required by the Human Rights Act to act compatibly with the right to respect for private life in Article 8 ECHR they do nothing to restrict the wide scope of the powers. In our view, the powers to search personal electronic devices are so intrusive, given the nature of the information held on those devices, that we do not consider these references in the Code to be sufficient to circumscribe the width of the powers. In our view they should only be exercisable on reasonable suspicion. The following amendments to the Bill would give effect to this recommendation:

Schedule 7, page 147, line 16, after paragraph 1 insert new paragraph:

"Limits on duty to give information and documents

1A In paragraph 5(1) of Schedule 7 to the Terrorism Act 2000, before "A person who is questioned" there is inserted "Subject to paragraph 9A below,"

Schedule 7, page 147, line 33, before paragraph 3 insert new paragraph:

2A In paragraph 8(1) of Schedule 7 to the Terrorism Act 2000, before "An examining officer" there is inserted "Subject to paragraph 9A below,"

Schedule 7, page 148, line 20, after paragraph 3 insert new paragraphs:

3A In paragraph 9(1) of Schedule 7 to the Terrorism Act 2000, before "An examining officer" there is inserted "Subject to paragraph 9A below,"

3B In Schedule 7 to the Terrorism Act 2000, after paragraph 9 there is inserted -

  "Data stored on personal electronic devices

  9A (1) For the purposes of this Schedule

    (a) the information or documents which a person can be required to give the     examining officer under paragraph 5,

    (b) the things which may be searched under paragraph 8, and

    (c) the property which may be examined under paragraph 9

    do not include data stored on personal electronic devices unless the person is     detained under paragraph 6.

  (2) "Personal electronic device" includes a mobile phone, a personal computer and any   other portable electronic device on which personal information is stored."

123.  These amendments would limit the power to access, search and examine data stored on personal electronic devices to cases where a person is detained under Schedule 7 and therefore to cases where the examining officer has reasonable grounds to suspect that the person is a terrorist. The power to make and retain copies of such data[90] would also be limited as a consequence of this amendment.

124.  We note in passing that the current Code of Practice envisages that the information which can be requested by an examining officer under paragraph 5 of Schedule 7 includes passwords to personal electronic devices and to data held on those devices.[91] The working draft of the revised Code of Practice contains the same advice.[92] However, section 49 of the Regulation of Investigatory Powers Act 2000 contains a bespoke regime, with detailed safeguards, for requiring the disclosure of a "key" to electronic information which has come into the possession of any person by means of the exercise of a statutory power. WE CALL ON THE GOVERNMENT TO EXPLAIN TO PARLIAMENT DURING DEBATES ON THE BILL WHY S. 49 OF RIPA DOES NOT APPLY IN THE CONTEXT OF BORDER SEARCHES.

125.  We also recommend that the Government bring forward proposals which would introduce adequate safeguards for categories of material, such as material subject to legal professional privilege, parliamentary privilege or which would disclose a journalist's sources, which enjoy protection under other legal frameworks such as the Police and Criminal Evidence Act.

Adequacy of other legal safeguards

(A) SELECTION FOR EXAMINATION

126.  The current Code of Practice, drawn up in 2009, states that "a person's perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination." One of the major concerns about the operation of Schedule 7 in practice, however, is the disproportionate effect on Muslims and other minority groups, and the way in which individuals are selected for examination. The EHRC in particular has expressed strong concerns about this aspect of Schedule 7.

127.  There is nothing in the Government's proposals which specifically addresses this concern. The revised Code of Practice is in almost identical terms to the current Code of Practice in this respect. The EHRC has conducted extensive work on the operation in practice of stop and search powers. We recommend that the Government discuss paragraphs 15 to 18 of the draft revised Code with the Equality and Human Rights Commission with a view to identifying whether there is scope for further guidance which will make it less likely in practice that the powers will be exercised in a way which has an unjustifiably disproportionate impact on Muslims and other minority groups. We also recommend that the revised Code of Practice should provide that records of examinations should include the self-declared religion of the person examined, if given, in addition to their self-declared ethnicity as already provided for in the Code.[93]

(B) RECORDING OF INTERVIEWS

128.  Currently only Schedule 7 examinations conducted at police stations are recorded. The Government consulted on whether all examinations of those detained under Schedule 7 should be recorded. 70% of respondents were in favour of recording all Schedule 7 examinations. The police, however, were concerned about the logistical difficulties and cost because many ports do not have recording equipment. The Committee asked the Government for the justification for distinguishing between Schedule 7 interviews at a police station and those at a port in this respect.

129.  The Government acknowledges the clear indication of opinion in favour of recording Schedule 7 interviews, but in view of the practical problems due to limited facilities at smaller ports it proposes not to require all such interviews to be recorded, but rather to amend the Code of Practice to indicate that recording of interviews is best practice where the facilities are available. It is also exploring with the police at which ports and airports the introduction of recording facilities would have most impact. The working draft of the revised Code of Practice says that "examining officers should consider whether to audio record at a port where recording facilities are available at the port", but it does not say that this is "best practice".[94]

130.  The recording of police interviews is an important safeguard, both for those being interviewed and for those conducting the interview. We acknowledge the Government's concerns about the cost and practicality of introducing such capacity at all ports, but in view of developments in modern technology, including the ready availability of mobile devices which have the capacity both to audio and video-record, we question how significant a practical issue it is to provide recording facilities at all ports and airports.

131.  We welcome the Government's commitment to amend the Code of Practice to make clear that recording of interviews is best practice where the facilities are available, but we note that this is not in fact clear in the current working draft. To ensure that progress is made towards that goal, we recommend that the Bill be amended to require all Schedule 7 examinations at ports to be recorded, to be brought into force on whatever day the Secretary of State appoints by order.[95] This would be in keeping with other changes made by the Bill which remove the distinction between detention at a police station and detention at a port under Schedule 7. The following amendment would give effect to this recommendation:
Schedule 7, page 148, line 39, after paragraph 4 insert new paragraph:

  "Audio- and video-recording of interviews

  4A In paragraph 3(6) of Schedule 8 to the Terrorism Act 2000, the words "if the   interview takes place in a police station" are omitted."

132.  This amendment to paragraph 3(6) of Schedule 8 to the Terrorism Act 2000 would apply to Schedule 7 interviews of detained people at ports the same arrangements for audio-and video-recording as currently apply to such interviews at police stations.

(C) REVIEW OF DETENTION

133.  The Bill provides for statutory review of ongoing detention under Schedule 7, by requiring that a supervising officer should review the need for continued examination following detention.[96] It leaves the details of when and how such reviews should occur to be set out in the new Code of Practice. The working draft of the revised Code of Practice provides that the first review will take place not more than one hour from the start of detention and the second no more than two hours after the first review.[97]

134.  We asked why the Bill provides that the intervals at which Schedule 7 detention will be reviewed by a review officer are to be specified in the Code of Practice, rather than on the face of the legislation itself as it is in Schedule 8 for reviews of detention under s. 41 of the Terrorism Act 2000.

135.  The Government replied that it took this approach "in view of the degree of operational detail involved, to include setting out the review periods and the role of the review officer."

136.  It is not clear to us why there is any more "operational detail" involved in specifying the review periods for detention under Schedule 7 than is involved in specifying the periods for detention under Schedule 8, where the periods are prescribed on the face of the legislation.

137.  We do not see any reason of principle for taking a different approach in relation to the periodic review of detention under Schedule 7 compared to detention under Schedule 8 of the Terrorism Act 2000. We recommend that the Bill be amended so as to specify the intervals for the review of detention, rather than leave them to be specified in the Code of Practice. The following amendment would give effect to this recommendation:

Schedule 7, page 150, line 2, after "officer" leave out "at such intervals as may be specified in, and otherwise in accordance with, the code of practice" and insert:

  "(2A) The first review shall be carried out as soon as is reasonably practicable after the   time of the person's detention and not more than one hour from that time.

  (2B) Subsequent reviews shall be carried out at intervals of not more than 2 hours."

138.  These proposed new paragraphs 20K(2A) and (2B) of Schedule 8 to the Terrorism Act 2000 would specify on the face of the legislation the intervals at which the reviewing officer should review the justification for continued detention, rather than leave them to be specified in the Code of Practice.

(D) PUBLIC NOTIFICATION

139.  We think it is important that the travelling public be aware of the existence of Schedule 7 powers, and we recommend that a written notice should be displayed at all ports and airports explaining in simple and accessible terms the possibility of examination under Schedule 7.


74   Clause 127 and Schedule 7 to the Bill. Back

75   The powers in Schedule 7 are available "for the purpose of determining whether he appears to be a person falling within section 40(1)(b)" Terrorism Act 2000: para. 2(1). Back

76   Home Office, Review of the Operation of Schedule 7, 13 September 2012. Back

77   The Terrorism Acts in 2012: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006, by David Anderson QC (July 2013), chapter 10. Back

78   Ibid at paras 10.50-10.62. Back

79   Ibid at paras 10.65-10.80. Back

80   Review of the Operation of Schedule 7: A Public Consultation -The Government Response (Home Office, July 2013). Back

81   PBC 9 July 2013 c 454-6. Back

82   The Terrorism Acts in 2012 (July 2013), para. 10.40. Back

83   A working draft of a revised Code of Practice was made available by the Government on 7 October "for illustrative purposes", and without prejudice to the draft which the Government will be required to publish and lay before Parliament in due course: Draft Code of Practice for examining officers under Schedule 7 to the Terrorism Act 2000 (October 2013) Back

84   In particular s. 1 Police and Criminal Evidence Act 1984, s. 44 Terrorism Act 2000 and s. 60 Criminal Justice and Public Order Act 1994.The stop and search power in Schedule 7 Terrorism Act 2000 has only been the subject of work by the EHRC more recently. Back

85   Sabure Malik v UK, Application no. 32968/11 (28 May 2013). Back

86   The Terrorism Acts in 2012: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (July 2013) paras 10.55-10.62. Back

87   Schedule 7, para. 3, inserting a new para. 8(5) into Schedule 7 of the Terrorism Act 2000 requiring the examining officer to have "reasonable grounds to suspect that the person is concealing something which may be evidence that the person falls within section 40(1)(b)".  Back

88   MM v UK, application no. 24029/97 (13 November 2012); and R (RMC & FJ) v Metropolitan Police Commissioner [2012] EWHC 1681 (Admin).In both cases it was noted that the Guidance permits retention of data for a long period (a minimum of six years), subject only to infrequent reviews. Back

89   Draft Code of Practice for examining officers under Schedule 7 to the Terrorism Act 2000 (October 2013), para. 66 Back

90   Under new para. 11A of Schedule 7 Terrorism Act 2000, inserted by para 4 of Schedule 7 to the Bill. Back

91   Code of Practice for examining officers under the Terrorism Act 2000, Note for guidance on paragraph 25. Back

92   Draft Code of Practice for examining officers under Schedule 7 to the Terrorism Act 2000 (October 2013), para. 65  Back

93   Draft Code of Practice for examining officers under Schedule 7 to the Terrorism Act 2000 (October 2013), para. 44. Back

94   Draft Code of Practice for examining officers under Schedule 7 to the Terrorism Act 2000 (October 2013), para. 46. Back

95   The Bill's commencement provision already permits the Secretary of State to appoint the day on which different provisions in the Bill come into force: clause 152(1) and (2). Back

96   New para. 20K(2) in Part 1A of Schedule8 to the Terrorism Act 2000, inserted by para. 7(3) of Schedule 7 to the Bill. Back

97   Draft Code of Practice for examining officers under Schedule 7 to the Terrorism Act 2000 (October 2013), para. 42. Back


 
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Prepared 11 October 2013